Janco & Riordan (No 2)
[2023] FedCFamC1A 153
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Janco & Riordan (No 2) [2023] FedCFamC1A 153
Appeal from: Janco & Riordan [2023] FedCFamC2F 470 Appeal number(s): NAA 101 of 2023 File number(s): CAC 1057 of 2021 Judgment of: CHRISTIE J Date of judgment: 11 September 2023 Catchwords: FAMILY LAW –APPLICATION IN AN APPEAL – Applications to adduce further evidence – Where there is no identified correlation between the evidence sought to be adduced and the grounds of appeal – Where the majority of material sought to be adduced pre-dates the making of the final orders appealed from and was available to the appellant but not tendered – Where evidence that post-dates the final orders appealed from is either inadmissible and/or not germane to the appeal – Where evidence sought to be adduced would not have produced a different result if available at trial before the primary judge – Applications dismissed.
FAMILY LAW – APPEAL – Appeal against final parenting orders – Where the parties lived a significant geographical distance from one another – Where neither party proposed moving their residence – Where the geographical distance between the parties did not allow the primary judge to make an order for a shared care arrangement but required that the child be placed in the primary care of one party and spend time with the other – Where almost identical practical difficulties existed in whether the child would live with the appellant or respondent – Where the primary judge found that the child had a close relationship with both parents – Where the primary judge found that the child was stable in the respondent’s care and spending time with the appellant – Where the primary judge considered and rejected the submission that the absence of evidence from the respondent’s partner was inconsistent with the outcome the respondent sought, applying the principles in Jones v Dunkel – Where primary judge’s conclusion that absence of evidence was peripheral to determination of parenting arrangements was open to him – Where appellant fails to establish error on the part of the Independent Children’s Lawyer and primary judge – Appeal dismissed – No order as to costs.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 68L, 68LA, 93A, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 78 Date of hearing: 5 September 2023 Place: Sydney For the Appellant: Litigant in person Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: GPG Lawyers Independent Children's Lawyer: Mary Burgess ORDERS
NAA 101 of 2023
CAC 1057 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS JANCO
Appellant
AND: MR RIORDAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
11 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 23 August 2023 is dismissed.
2.The Application in an Appeal filed 24 August 2023 is dismissed.
3.Appeal NA101/2023 is dismissed.
4.Leave is granted to the respondent to make an oral application for costs, which application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Janco & Riordan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal against final parenting orders of a Judge of the Federal Circuit and Family Court of Australia (Division 2) made on 28 March 2023.
The appellant asks that this Court allow the appeal, set aside the primary judge’s orders and re-exercise the discretion.
The respondent contends that no error has been demonstrated and accordingly asks that the appeal be dismissed.
The Independent Children’s Lawyer (“ICL”) who appeared at the trial is a respondent to the appeal and also seeks that it be dismissed.
For the reasons that follow the appellant has not demonstrated error and the appeal will be dismissed.
THE TRIAL
The proceedings concerned parenting arrangements for X, aged 5.
The parties did not cohabit. During their relationship they spent time with one another in Sydney and City J. From the time of X’s birth until their separation in 2020 X lived with the appellant. The appellant has two older children: an adult daughter who does not live with her and a son who is in his final year of high school.
In March 2020 the Magistrates Court of Region O made an interim family violence order for the protection of the appellant with the respondent named as the defendant.
The parties entered into final consent orders in the Federal Circuit Court of Australia in May 2020 (“the consent orders”). The consent orders contain a notation that they were agreed to at a Family Dispute Resolution Conference. The consent orders provided that after the respondent commenced living in a Region P suburb X live with the respondent and spend time with the appellant. This arrangement commenced in July 2020.
The respondent re-partnered and in the second half of 2020 began to live with Ms C.
There was a verbal altercation between the appellant and Ms C during a telephone call on Christmas Day 2020.
In January 2021 the Local Court of NSW at Suburb Q made an Apprehended Domestic Violence Order (“ADVO”) for the protection of the respondent’s partner, Ms C, and the child X for a period of two years. The appellant was the defendant bound by the order. That order was revoked without opposition from Ms C in July 2022.
In January 2021 the Magistrates Court of Region O made an interim family violence order for the protection of the appellant naming the respondent as the defendant. Those proceedings concluded with an undertaking in June 2021.
In May 2021 the appellant filed an Initiating Application seeking to discharge the consent orders and seeking orders that X live with her and spend time with the respondent.
In June 2021 at Court the parties reached an agreement and in June 2021 further interim orders were made by consent. X continued to live with the respondent pursuant to those orders.
At the time of the trial the appellant lived in Suburb S, a suburb in Region O and the respondent lived in suburb K in New South Wales. The two homes were located about 2.5 hours’ drive from one another.
The appellant’s case at trial was that she had not voluntarily agreed to the consent orders. Further she said events since the making of those orders would indicate that the respondent has not facilitated her relationship with X and accordingly the orders should be changed.
During 2021 the parties had substantial communication about X’s health and medical treatment.
THE APPEAL
Applications in an Appeal for leave to adduce further evidence
On 23 August 2023 the appellant filed an Application in an Appeal seeking leave to adduce further evidence. That Application was accompanied by an affidavit with 18 annexures including documents and videos sought to be adduced as further evidence. Those annexures (excluding videos) span 167 pages.
On 24 August 2023 the appellant filed a further Application in an Appeal seeking leave to adduce (different) further evidence. The appellant’s affidavit in support of that application annexes an affidavit dated 3 March 2023 by the respondent’s mother which was not before the primary judge and some social media posts.
Both of those applications have been filed outside the time allowed for in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Rule 13.39(1) of the Rules provides that any Application in an Appeal must be filed at least 14 days prior to the hearing of the appeal. I accept that if the material sought to be adduced was capable of demonstrating the orders the subject of appeal were erroneous then it would be appropriate to extend time.
Dealing with the application filed 23 August 2023 and the evidence in support first - Annexures 1-15 are all documents dated or originating prior to the final hearing conducted in March 2023. The mere fact that a document predates the orders from which the appeal lies will not determine the application to adduce further evidence. However, this will be relevant to the exercise of the discretion, with greater or lesser weight attached to the fact depending on the overall circumstances of the case. The annexures are primarily correspondence between the appellant and her lawyers or between the parties’ lawyers and illuminate the appellant’s dissatisfaction with the existing parenting orders. But, this much was always clear from the ongoing litigation – the appellant was seeking that X live with her.
Annexure 16 comprises journal entries written by the appellant since the final hearing. Annexure 18 is a document from a Dr T of Medical Practice U dated 23 August 2023 and titled “Medical Evaluation and Concerns for Ms. Janco”. Annexure 17 comprises various videos of the child which, on their face, appear to be from 2021. The appellant submitted the videos demonstrated the child’s distress on separating from her and hence were supportive of the orders which she sought at trial. To receive them on appeal I would have to be satisfied that they were capable of demonstrating error. The primary judge was aware that X had had difficulty transitioning from one parent to the other but this was in the context of a close relationship with each of them. The video evidence sought to be adduced in that context does not demonstrate the orders were erroneous and given the date range of the videos January 2021 to October 2021 all were available at the time of the hearing before the primary judge.
The power to admit further evidence on appeal is found in s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (being the equivalent to former s 93A of the Family Law Act 1975 (Cth) (“the Act”)). It is a discretionary power remedial in nature. The High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) set out:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.…The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial...
…
113.In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
(Original emphasis)
Rule 13.39(2)(b) of the Rules provides that the grounds of appeal to which the application to adduce further evidence on appeal relates must be stated in the affidavit filed with the application. This is the first deficiency of the appellant’s application.
The appellant’s affidavit fails to identify any correlation between the evidence and the grounds other than generalisations such as “the true nature of the circumstances surrounding this case”. Her application states that she “seeks to adduce this evidence in line with her grounds for appeal”. This does not satisfy r 13.39 of the Rules.
A further deficiency is the significant volume of material that pre-dates the final hearing. This deficiency is amplified by the fact that such material (namely annexures 1-15 and 17 to the affidavit filed in support of the 23 August application) was available to the appellant at the original hearing but not tendered.
I then turn to the content of the evidence sought to be adduced that post-dates the final hearing.
Annexure 16 comprises numerous journal entries authored by the appellant regarding the care of and co-parenting of X. It also includes text message communications between the parties about X and a Discharge Summary from City J Hospital for X dated May 2023. I cannot be satisfied that these documents meet the requirements set out by the High Court in CDJ v VAJ. That evidence does not point to the order under appeal being erroneous.
Annexure 18 is, in effect, an expert report. It is unsworn. Dr T’s opinions are bare assertions. It is not apparent what evidentiary foundation (if any) informs the opinions. The letter asserts that Dr T has been overseeing the appellant’s medical care “for over four years and [is] deeply familiar with the intricacies of her psychological and emotional well-being”. If this is the case, it was open to the appellant to have called on Dr T as a treating medical practitioner in her case at the primary hearing but she did not do so. Furthermore, Dr T’s qualifications and experience are not recorded and so it cannot be known upon what specialised knowledge (if any) Dr T’s opinions are wholly or substantially based. This could not fall into that category of evidence which the court readily accepts as further evidence – namely uncontroversial evidence which is relevant, admissible and credible on its face: CDJ v VAJ at [114] – [115].
Turning to the further Application in an Appeal to adduce further evidence filed 24 August 2023. That application seeks to adduce an affidavit which was purportedly prepared on behalf of the respondent’s mother but not filed or relied upon in the proceedings below, together with some Facebook posts by the respondent’s partner. The appellant submitted that the Facebook posts were germane. If I understood her submission it was that had the primary judge had this material (which suggests the respondent and the respondent’s partner are expecting a child) then the primary judge may not have so easily concluded that X was stable in the respondent’s care. I am not convinced that the fact that X is to have another sibling is conclusive of instability. More significantly, this development in X’s household does not demonstrate that the primary judge’s orders were erroneous.
A subsequent affidavit filed by the appellant on 25 August 2023 attaches correspondence with the ICL which casts doubt on the preparedness of the respondent’s mother to be associated with the affidavit which bears her name. I am left with a document which while adopted on oath was not filed or relied upon and the evidence suggests later resiled from. The appellant said it was not filed because it was late, but no application was pursued for leave to rely upon it.
The final section of the 25 August 2023 affidavit otherwise sets out the relief the appellant would seek on re-exercise.
I am conscious that the provisions which permit me to receive further evidence on appeal create a discretion to ensure that proceedings do not miscarry: CDJ v VAJ at [104]. In exercising that discretion I take into account that it is not unfettered, that is, it is governed by the subject matter, scope and purpose of the appeal provisions and the need for finality.
I am satisfied that the evidence which the appellant asks me to receive is in the nature of that which the Court already had available at trial: the Court knew the appellant was unhappy about the existence of the interim orders and that X had trouble transitioning between the households.
I have considered the evidence sought to be adduced both individually and collectively to assess whether those documents or the evidence when taken together “would have produced a different result if it had been available at trial”: CDJ v VAJ at [111]. I have concluded that it would not.
Both applications for this Court to receive further evidence will be dismissed.
Grounds 1 & 2: Status quo
Grounds 1 and 2 were drafted as follows:
1."Absent any other agreement in writing between the parties, [X] shall live with the [respondent]."
2.Error of principle: The lower court erred by placing undue reliance on the interim orders to grant sole custody to the respondent [respondent], without adequately considering the best interests of the child. The interim orders were imposed without the input of the [appellant] and were put in place while the [respondent] withheld the child and breached the final orders from May 2020. The court should have conducted a thorough assessment of the custody arrangements, taking into account all relevant factors, including the geographical distance between the parties.
(As per the original)
The primary judge was dealing with a situation where the expert evidence was to the effect that there were no real risk issues for the child who had a good relationship with both his parents. Had the parents lived in reasonable proximity the primary judge noted “it would be more likely than not that there would be a shared care arrangement…”: [2], see also [25].
Perhaps more significantly, for reasons I will return to later in these reasons for judgment, the primary judge’s conclusion was reflective of the appellant’s own position at trial, as is plain from this exchange between counsel for the respondent and the appellant:
COUNSEL FOR THE RESPONDENT: And – my words, of course. And but for the large distance, the large geographical distance between you both, if you were living close together, it’s likely, if not immediately but very soon, that it would be a shared care arrangement?
APPELLANT: Yes.
(Transcript 8 March 2023, p.38 lines 1-3)
In what the primary judge described as a “finely balanced” case it was appropriate to have regard to the importance to the child of maintaining stability. It was not the existence of the interim orders which was key to the determination but the fact of there having been a number of changes in the child’s life to date, his having commenced school and the desire on the part of the primary judge to not impose a further change in those circumstances.
The case was not conducted in a circumscribed fashion. There was a Child Dispute Conference Memorandum, a Child Impact Report and a full Family Report and each party filed trial affidavits. The parties and the Court Child Expert were cross-examined.
This ground is not established.
Grounds 3, 5, 6, 7 & 8: The respondent’s partner
Grounds 3, 5, 6, 7 and 8 related to the respondent’s partner, Ms C. Those grounds were set out as:
3.Lack of consideration of evidence: The lower court failed to properly assess the evidence pertaining to the [respondent]’s de facto partner and her ability or suitability to care for the child. This evidence is crucial in determining the child's best interests. Both parties neglected to call Ms. [C] as a witness, resulting in the court's inability to explore her role and suitability in the child's ongoing care. The lower court's failure to address this evidence warrants the reconsideration of the custody decision.
5.Relevant factor: The [respondent]’s de facto partner's ability and willingness to care for the child is a material factor that should have been considered by the lower court. The failure to do so resulted in a decision that may not have been in the child's best interests.
6.Failure to examine new evidence: The lower court's failure to assess the [respondent]’s partner's capacity and willingness to care for the child deprived the court of essential information to make a well informed custody decision. This oversight may have adversely impacted the decision, necessitating the reversal of the lower court's ruling.
7.Prejudice to [appellant]’s case: The lower court's neglect to consider the evidence from Ms. [C] may have unfairly disadvantaged the [appellant]'s case for custody. If the evidence had been appropriately evaluated, the court may have reached a different custody decision that would have been more favo[u]rable to the [appellant] and the child.
8.Importance of child's environment: Ensuring the child's living environment is safe, stable, nurturing, and conducive to their overall well-being is crucial. The court's failure to properly consider the child's environment with Ms. [C] constitutes a significant oversight.
The respondent did not call his partner, with whom he lives, to give evidence as a witness in his case. The respondent’s partner was interviewed (by telephone) by the Court Child Expert.
The parties have the task of framing the litigation in terms of legal and factual issues. The appellant was represented in the Court below. The appellant’s counsel made submissions open to her, without notable omission, about the absence of affidavit evidence by the respondent’s partner. The appellant’s counsel ultimately invited the primary judge to draw an inference from the failure to call Ms C in line with the principles in Jones v Dunkel (1959) 101 CLR 298. The primary judge carefully considered the submissions at [12] – [15] and determined that, for the reasons outlined, the absence of direct evidence from Ms C was not fatal to the respondent’s application.
It is important to understand the appellant’s case at trial in so far as it related to the respondent’s partner to evaluate whether or not the judge’s conclusions about failure to call her were in error.
The appellant’s affidavit evidence concerning the respondent’s partner dealt with the following:
(a)The appellant’s perception that the ADVO protecting the respondent’s partner was made under “false pretences”;
(b)X reporting to the appellant in about August 2021 that “he had showered with” the respondent’s partner;
(c)An allegation that the respondent’s partner had behaved aggressively to a process server;
(d)The fact that the respondent had listed his partner as an “emergency contact” at the child care centre;
(e)The fact that the respondent’s partner attended medical appointments with the respondent which precluded the appellant’s attendance because of the ADVO;
(f)The fact that the child had been referring to the respondent’s partner as “Mummy [Ms C]”;
(g)The respondent’s partner telling the appellant how to parent (on the Christmas Day occasion which led to the ADVO); and
(h)That the respondent’s partner terminated telephone calls in March/April 2021.
At trial the appellant relied on a Notice of Risk filed May 2021. It contained matters which the appellant said had been reported to her by the child including the respondent’s partner “hits me” and “swears at me”. These were not repeated in any affidavit material. No questions were put to the respondent in cross-examination arising out of those matters in the Notice of Risk. It is not open to agitate those matters as relevant to the appeal where the appellant’s case at trial was that they did not preclude a shared arrangement had the parties’ homes been more proximate.
In essence the chief issues concerning Ms C which were the subject of attention at trial were the events which led to the making of the ADVO for the protection of Ms C and her involvement as a contact point at the child care centre.
The above matters were not the primary foci of the appellant’s case at trial which was concerned in the main with whether the respondent posed a risk to the child, whether she had been duped into the previous orders and whether the respondent had alienated the child’s affection from the appellant. The appellant’s case at trial was that she was a committed parent whose child had been placed with the respondent by stealth and should be returned to her. At the same time and somewhat inconsistently she indicated at [18] of her trial affidavit that the child “needs both his Mum and Dad equally consistent in his life”.
It is in this context that the question of what inferences (if any) were open must be approached. In Kuhl v Zurich Financial Services (2011) 243 CLR 361 Heydon, Crennan and Bell JJ said at 385-6, [63]-[64]:
63. The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue…
64. The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party…
(Citations omitted)
The respondent submitted that the limited scope of the evidence about Ms C and lack of real dispute about what had occurred on Christmas Day 2020 meant that her evidence was not essential in respect of any fact in issue in the proceedings. The primary judge concluded at [14] that there was no evidence to suggest Ms C had had an adverse impact on the child’s relationship with the appellant; or that Ms C posed a risk. Further, the primary judge concluded that since the respondent’s protective capacity was not seriously in issue he would not expose the child to Ms C if she posed a risk to the child. No error has been demonstrated.
Ground 4: Independent Children’s Lawyer
Ground 4 relates to the conduct of the ICL and was particularised as follows:
4.Independent Children's Lawyer (ICL) inadequacy: The ICL failed to fulfill [sic] their duty of care for the child by not meeting or interviewing the child, consulting significant individuals in the child's life, or requesting a psychological assessment. This deficiency deprived the lower court of critical information relevant to the custody decision, resulting in an insufficient examination of the [respondent]’s partner.
The Court appointed an ICL to represent the child’s interests in the proceedings pursuant to s 68L of the Act. The section is drafted to draw the distinction between representing the child and representing the best interests of the child; a distinction further reinforced by s 68LA(4) of the Act. The legal practitioner appointed is obliged to make decisions as part of that legal representation which reflect the best interests of the subject child. Those decision include whether to meet with the child. The Act (as presently drafted) is silent about whether an ICL should meet with a child.
The obligations of an ICL are set out in s 68LA(5) of the Act. The ICL in this case had the views of the two most significant people in the child’s life (his parents). In addition she had three reports by qualified persons, in particular the psychologist who prepared the Family Report.
The appellant’s grounds do not establish any error on the part of the ICL (or the primary judge). If there was material which was relevant to the court’s determination within her knowledge it was incumbent upon her to draw it to the attention of the court.
At the hearing of the appeal the focus of the appellant’s submissions in support of this ground were on her belief that the Court Child Expert would conduct an interview or assessment with the child. The Court Child Expert conducted observations of the child with both parents in July 2022. X was four years old. No party suggested he had special needs which required “assessment” and the fact that the Court Child Expert did not interview him separately from either of his parents was unremarkable given his age. No error is demonstrated.
Grounds 9 & 10: Error in law/outcome
Grounds 9 and 10 were drafted as follows:
9.Failure to properly apply the law: The lower court did not correctly apply the relevant laws and regulations, failing to properly weigh all relevant factors, including the child's best interests and the practical difficulties of the distance between the parties.
10.Substantial injustice: The lower court's decision has resulted in a significant injustice, unfairly restricting the [appellant]'s ability to spend time with the child, both physically and through phone communication.
To the extent that the grounds assert that the primary judge did not apply the relevant law it is not possible to discern what applicable legal provisions are said to have been overlooked. The appellant’s grounds and submissions deal in detail with the difficulties posed by the parties living at some distance from one another and an alleged complaint about the primary judge’s failure to address these practical issues. It is difficult to understand what more the primary judge could have done in the circumstances.
The child was to live with one parent or the other. Neither parent proposed moving their residence. His Honour was obliged to select from two options which posed almost identical practical difficulties. No error is demonstrated.
Grounds 11, 12 & 13: Failure to consider
Grounds 11, 12 and 13 related to the appellant asserting that the primary judge failed to consider particular factors. Those grounds were set out as follows:
11.Best interests of the child: The lower court did not adequately consider all relevant factors in the child's best interests, as required by the Family Law Act 1975 (Cth). The court should have evaluated aspects such as the child's relationships with both parents, medical needs, siblings, religion, culture, family support, and the child's wishes and feelings.
12.Shared parenting: The lower court did not properly consider the possibility of a shared parenting arrangement, allowing the child to spend substantial and significant time with both parents despite the distance between them, as required by the Family Law Act.
13.Relevant considerations: The lower court failed to appropriately weigh all relevant considerations as provided by the Family Law Act, leading to inadequate decisions regarding the final orders for the child's custody.
This case was not going to be determined and was not determined by reference to the views of five year old X who by all accounts has a close relationship with both parents.
The Court considered the child’s “good and close relationship with both parents” ([5]), the child’s lifestyle and background ([23], [27]), the effect of change ([30]) and parenting capacity ([31]).
The primary complaint articulated by the appellant’s Summary of Argument is that the respondent was coercive and controlling and obtained the order which placed the child in his care through coercion and control and that the primary judge failed to pay proper regard to these circumstances when exercising his discretion to make the final orders the subject of appeal.
The evidence which the appellant says was overlooked is the making of an Apprehended Violence Order in 2020, the retention of the child resulting in the making of a Recovery Order and the content of her Notice of Risk filed May 2021. Notably these events predate the interim consent orders of June 2021 which provided for the child to remain living with the respondent and spend time with the appellant each alternate weekend and half the school holidays.
At the hearing of the appeal the appellant submitted that she consented to the orders of June 2021 with a belief that they were likely to be revisited promptly. Even accepting that to be the case the primary judge was entitled to take into account the appellant’s consent (on two occasions) to orders whereby X lived with the respondent.
The appellant’s Summary of Argument repeats arguments set out in her Outline of Case document filed in the proceedings before the primary judge. The difficulty with the appellant’s contentions on appeal are that they sit uncomfortably with the conduct of the trial below. The appellant’s counsel, in the hearing before the primary judge, and the appellant, in her submissions on appeal, argued that the respondent had “alienated” the child and could not be trusted (unlike her) to facilitate the child’s relationship with the other parent. However, the evidence did not support the conclusion that after June 2021 either party had retained the child. Further, the appellant was concerned that the respondent may not facilitate time other than as provided in the orders. This concern, even if genuinely held, does not establish appellate error. Finally, importantly, there was no evidence to support that the relationship between the appellant and the child had been undermined by the existing parenting orders.
It can be assumed that the interactions between the parents at the beginning of 2020 when the appellant obtained her recovery order represented a low point in the parties’ post-separation parenting. The difficulty which the appellant faces is that after this, on the face of the court record, and with the benefit of legal advice, she consented to parenting orders which saw the child spend four nights a week with the respondent and three nights a week with her. The parties implemented this arrangement until it needed to be changed to accommodate the child commencing school. The evidence did not establish that there had been any act by the respondent which would satisfy the definition of family violence in s 4AB the Act in the period since the making of the parties’ consent orders. I accept that the mere fact that the parties reached a consent arrangement is not conclusive of whether or not one or other of them has engaged in family violence but given the appellant, who was legally represented, had an opportunity to lead evidence of conduct constituting family violence in the period between the making of the consent orders and trial; her failure to do so placed the primary judge on firm footing in approaching the matter as he did.
The relevance of the appellant’s allegations concerning family violence was squarely raised before the primary judge when objection was taken to a question in cross-examination. Counsel who appeared for the appellant, responding to an objection taken on the basis of relevance, (given the appellant’s case was that the child ought be with the respondent each alternate weekend and half the school holidays) indicated that the question ought be permitted because it would go to the respondent’s “credit”: Transcript 8 March 2023, p.65 line 35.
In circumstances where the appellant conceded, as discussed above at [40] , that if the parties lived in closer proximity then time would be “shared care” it is not open to her to argue on appeal that the primary judge failed to accord sufficient weight to a matter which would not (in her mind) have prevented an equal time arrangement.
A judge will not be in error for failing to avert to a factor listed in s 60CC(3) of the Act if that factor was not and could not be material to the outcome.
As previously discussed the primary judge acknowledged that a more substantially shared parenting arrangement would have been likely had the parents lived in closer proximity. It is difficult to find error in his rejection of a more shared approach where neither party was seeking it and the practical considerations would not have permitted it.
Ground 14: Adequacy of reasons
Ground 14 related to the breadth of reasons of the primary judge and was set out as follows:
14.Reasoning: The lower court did not provide sufficient reasons for its custody decision, as mandated by the Family Law Act. The decision's rationale is unclear, making it difficult to determine if the lower court properly applied the law in its custody decision. This lack of explanation hinders the [appellant]'s understanding of the reasoning behind the decision and her ability to formulate a comprehensive appeal.
The test for the adequacy of reasons, as outlined in the case law, is well understood. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the test formulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 as follows:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:–
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The primary judge’s concise reasons for judgment reveal his reasoning process: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386. In a case where he was obliged (because of geography) to make an order which placed the child in the primary care of one parent and make orders for the child to spend time with the other parent he was not persuaded by the evidence to change the child’s current parenting arrangement. He was cognisant of the appellant’s complaints but found that the child was stable in the respondent’s care and had been spending time with the appellant in accordance with the existing orders with the result that the child had a close relationship with both parents.
Neither Ground 15 or 16 were pursued by the appellant as standalone grounds of appeal and do not require further consideration.
COSTS
The appeal is to be dismissed. In that eventuality the respondent to the appeal sought an order for costs. The provisions of s 117(1) of the Act apply. I am obliged in exercising the discretion to have regard to any relevant matters in s 117(2A) of the Act. In balancing the fact that the appellant has been wholly unsuccessful against the appellant’s financial circumstances I find that I should not depart from the usual rule and accordingly I decline to make an orders for costs.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 11 September 2023
0
3
0